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Further Reading

In a new court filing, the Department of Justice revealed that it kept a secret database of telephone metadata—with one party in the United States and another abroad—that ended in 2013.

The three-page partially-redacted affidavit from a top Drug Enforcement Agency (DEA) official, which was filed Thursday, explained that the database was authorized under a particular federal drug trafficking statute. The law allows the government to use "administrative subpoenas" to obtain business records and other "tangible things." The affidavit does not specify which countries records were included, but specifically does mention Iran.

This database program appears to be wholly separate from the National Security Agency’s metadata program revealed by Edward Snowden, but it targets similar materials and is collected by a different agency. The Wall Street Journal, citing anonymous sources, reported Friday that this newly-revealed program began in the 1990s and was shut down in August 2013.

The criminal case involves an Iranian-American man named Shantia Hassanshahi, who is accused of violating the American trade embargo against Iran. His lawyer, Mir Saied Kashani, told Ars that the government has clearly abused its authority.

"They’ve converted this from a war on drugs to a war on privacy," he said.

"[Hassanshahi] is not accused of any drug crime but they used this drug enforcement information to gather information against him, that's contrary to the law, and we will revisit that. We will bring motions in the court and we will appeal if necessary."

Neither the DEA nor the Department of Justice immediately responded to Ars' query as to whether this program is continuing under a different authority.

Spy cases abound

Further Reading

The story begins in 2011, when a Department of Homeland Security (DHS) agent received a tip about someone who might be in violation of American sanctions against Iran. The source provided an e-mail from an Iranian businessman, Manoucher Sheiki, who was involved in acquiring power grid equipment.

A second Homeland Security agent, Joshua Akronowitz, wrote in a 2013 affidavit that he searched Sheiki’s Iranian phone number in this database, but declined to explain exactly what kind of database it was. Akronowitz found that the Iranian number came up exactly one time in the database, and was linked to an 818 number, based in Los Angeles County. That number turned out to be the Google Voice number of Hassanshahi.

DHS then subpoenaed Google, and got Hassanshahi’s call log and later, metadata on his Gmail account. By early 2012, the agency found out that he was set to return to Los Angeles from Iran. At LAX Airport, customs agents seized his phone, laptop, thumb drives, camcorder, and SIM cards and sent them to Homeland Security.

Last year, Kashani, Hassanshahi’s lawyer, argued that this evidence should be suppressed on account that it was the "fruit of the poisonous tree"—obtained via illicit means. In support of his arguments, Kashani cited an important ongoing NSA-related lawsuit, Klayman v. Obama, which remains the only instance where a judge has order the NSA metadata program to be shut down—that order was stayed pending an appeal. (Earlier this month, Ars explored Klayman and other pending notable surveillance cases.)

In a December 2014 opinion in the Hassanshahi case, US District Judge Rudolph Contreras allowed the evidence, but also required that the government provide a "declaration summarizing the contours of the law enforcement database used by Homeland Security Investigations to discover Hassanshahi’s phone number, including any limitations on how and when the database may be used."

To comply with the judge’s order, Robert Patterson, the assistant special agent in charge of the DEA, wrote in the Thursday filing:

As noted, this database was a federal law enforcement database. It could be used
to query a telephone number where federal law enforcement officials had a reasonable
articulable suspicion that the telephone number at issue was related to an ongoing federal criminal investigation. The Iranian number was determined to meet this standard based on specific information indicating that the Iranian number was being used for the purpose of importing technological goods to Iran in violation of United States law.

Previously, the government had not revealed exactly how it began its investigation of Hassanshahi, and only referred cryptically to "[DHS]-accessible law enforcement databases," in Akronowitz’ 2013 and 2014 affidavits.

Back to typewriters?

Further Reading

Similarly, other privacy-minded legal experts questioned the government’s tactics in this new revelation.

"We just don’t know about the scope of these things, and that’s what’s disturbing," Andrew Crocker, a legal fellow at the Electronic Frontier Foundation, told Ars.

His colleague, Hanni Fakhoury, an EFF attorney who used to be a federal public defender, added that he was "not surprised."

"Bulk surveillance technologies and the dangerous legal theories that are used to support them trickle down, and here's a prime example of that," he wrote by e-mail.

"The DEA's mandate is of course important but not at the level of national security where as you know there are serious legal questions about the propriety of this collection of phone metadata. And if the DEA has a program like this, it wouldn't surprise me if other agencies do too for other sorts of records the government has claimed it can collect with a subpoena (like bank records)."

Patrick Toomey, an attorney with the American Civil Liberties Union, chimed in to say that this indeed was a clear example of government overreach.

"This disclosure underscores how the government has expanded its use of bulk collection far beyond the NSA and the national-security context, to rely on mass surveillance in ordinary criminal investigations," he said by e-mail.

"It’s now clear that multiple government agencies have tracked the calls that Americans make to their parents and relatives, friends, and business associates overseas, all without any suspicion of wrongdoing," Toomey continued. "The DEA program shows yet again how strained and untenable legal theories have been used to secretly justify the surveillance of millions of innocent Americans using laws that were never written for that purpose."

Kashani said that he takes unusual steps to protect his own privacy.

"I still have manual typewriters and carbon paper—that’s what I do," he said.

"I use e-mail when I have to, but for myself, I advise my clients just as a matter of routine: do not use e-mail unless you want the whole world to read it," he added. "Unfortunately we have to assume that the government is reading your e-mail. That does not make it right. I think email should be private. I think the term is: everyone has and should have a reasonable expectation of privacy in e-mail and telephone conversations, in who he called and how long he speaks, but the government is intruding on that privacy on a widespread scale."

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Cyrus Farivar
Cyrus is a Senior Tech Policy Reporter at Ars Technica, and is also a radio producer and author. His latest book, Habeas Data, about the legal cases over the last 50 years that have had an outsized impact on surveillance and privacy law in America, is out now from Melville House. He is based in Oakland, California. Emailcyrus.farivar@arstechnica.com//Twitter@cfarivar